Maminza kicked off Esidakeni farm

The government's seizure of Esidakeni farm in Matabeleland North was unlawful, the High Court in Bulawayo has ruled.

Offer letters for sections of the farm given to Zanu-PF secretary Obert Mpofu and several Central Intelligence Organisation (CIO) agents are also null and void, Justice Bongani Ndlovu ordered in a judgement delivered on June 30.

Business partners, rights activist Siphosami Malunga, scientist Zephaniah Dlamini and miner Charles Moyo bought the 550-hectare farm located in Nyamandlovu in 2017 when they acquired all the shares in Kershelmer Farms (Private) Limited.

But in December 2020, the minister of lands and agriculture issued a notice in the Government Gazette that the land had been compulsorily acquired by the state for resettlement. The minister went on to issue offer letters to about a dozen individuals, including Mpofu.

Malunga, Dlamini and Moyo argued that they were being punished at the instigation of Gatsha Mazithulela, the then deputy director of the CIO who had tried to elbow his way into the partnership but had been locked out.

The High Court said the seizure of a farm from indigenous farmers purportedly to resettle other farmers was not only unlawful but "irrational, arbitrary, malicious, and capricious."

"The farm owners are indigenous Zimbabweans. They are black people. The liberation struggle was waged so that black people could reclaim the land. They, however, purchased this farm. The fact that the beneficial ownership of this land is in the hands of black Zimbabweans means that its acquisition is void. It is illegal. It is irrational in that it cannot satisfy the constitutional imperatives. It is contrary to the principle of legality," Justice Ndlovu ruled.

"The acquisition is not based on the constitution's authority; nothing can depend on it. The farm was not acquired for constitutional purposes. This is not, and cannot be the purpose of land redistribution, and it undoubtedly has the effect of undermining Zimbabwe's status as an attractive investment destination. That taints the acquisition and renders it invalid."

Justice Ndlovu said arguments that Malunga, the former executive director of the Open Society Initiative for Southern Africa, is "considered a government critic is of no moment."

He added: "A policy that says some Zimbabweans can lose private property simply because they are critics of the ruling establishment is downright uncouth and belongs to the dark ages. The irrationality inherent in the process is unmistakable and cannot go unnoticed.

"Acquired land must be given to landless indigenous Zimbabweans. How can land be taken from Indigenous Zimbabweans and be parcelled out to other Zimbabweans? Are those beneficiaries more Zimbabwean than Malunga and the two others who jointly own the farm? The decision to acquire the farm was arbitrary, malicious, and capricious. It cannot stand as a valid administrative decision and is void."

The judge also found that no notice was brought to the attention of Malunga, Moyo and Dlamini before the farm's acquisition.

"The failure to give adequate notice to those who were affected by the decision to acquire their farm renders the decision of the lands minister arbitrary and in contravention of the law as set out in the relevant statutes," Justice Ndlovu said as he quashed the notice of acquisition and invalidated offer letters given to Mpofu and others.

Advocate Thabani Mpofu appeared for the Kershelmer directors while Julian Mugova represented Mazithulela. Moreblessing Mahaso was the lawyer for offer-letter-beneficiary Dumisani Madzivanyathi; Nqobizitha Ndlovu appeared for Obert Mpofu, Reason Mpofu and Mswelangubo Farm and Kossam Ncube argued for two other beneficiaries Legina Muchimba and Lovemore Jiyane.

The court's decision ends a bruising battle for control of the prime farm which saw attempts by Mpofu and Madzivanyathi, in particular, to drive out the three business partners by vandalising infrastructure and destroying their crops.

Mpofu once deployed armed guards to prevent access to the farm by Malunga, Moyo and Dlamini before the High Court ordered his eviction pending determination of the farm's ownership, which has now been made by the High Court.